POLOŽAJ I NADLEŽNOSTI KADIJE U OSMANSKOM PRAVNOM SISTEMU//THE POSITION AND COMPETENCIES OF QADIS IN OTTOMAN LEGAL SYSTEM
Journal Title: Historijski pogledi/Historical views - Year 2020, Vol 3, Issue 4
Abstract
Qadis were representatives of judicial branch in Ottoman Empire. The origin of this legal institute comes from the early development phase of islamic state – Omeyyad dinasty when the first rulers and later caliphs apointed qadis for solving disputes. For their appointment in Ottoman Empire qadiasker (military judges) were competent. Each of these judges appointed qadis and religious scolars (muderis) in their area of administration: Rumelian or Anatolian. As members of ulema (religious scolars) qadis enjoyed huge reputation in Ottoman Empire with high degree of independence and integrity in their work. The area under qadis jurisdiction was called kadiluk (or kaza). One sanjak (bigger administrative unit in Ottoman Empire) could be divided in more kadiluks depending on density of muslim population. Qadis were engaged in solving marriage, family and other disputes, regulating prices on the market, securing the public order, control over mosques, religious schools, public bathrooms, orphanages, roads and other legal duties. Together with muhtesibs they controlled the procurement in cities where they served and also in giving the waqf land into lease (mukat). Qadis were educated in medresas (seymaniye schools) and depending on their competence and knowledge they could go further on higher positions in Ottoman legal and administrative system. Beside the implementation of Sharia Law, functions of Qadi was also specific due to the judicial procedure. Ottoman criminal law made a difference between criminal offences against the rights of individuals (murder, theft) and the one against God – so called Hadd offences (consumation of alcohol, apostasy, slander, illicit sexual intercourses, robbery, rebellion). According to the type of offence the procedure could be started by the impaired person, his relatives or any member of the community since the Ottoman law did not know the institute of public prosecutor. When it comes to the inaction of punishments, the principle of legality was important as also the minimum degree of doubt that the person perpetrated the crime for which he was charged so in cases of incompatibility between offence and sharia law no other legal actions were taken. During the procedure qadis used the principle of justice and fairness (arabic: hukm, adl, mizan, insaf) where every Muslim had to follow and achieve it in his life. On the other side there was injustice (Zulm). Connected with the justice there was istihsan as a subsidiary source of law. The judging on basis of fairness was inspired by reasons of conciousness which allowed to divert from the current law if it led towards unfair solution. Istihsan was not superior over Sharia law but it represented its constitutive part. Its impelementation allowed Sharia Law to be flexible and to adjust itself to current needs. Qadis who used istihsan could in concrete case retreat from the legal norm, which according to their legal opinion was legally either too narrow or wide, in order to find fair solution. In order to protect other involved parties in procedure different procedural principles (principle of legality, right to defence, prohibition of retroactive application of law) were created where a lot of them are part of todays modern legal systems.
Authors and Affiliations
Sead BANDŽOVIĆ
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